United States v. Duque-Hernandez , 227 F. App'x 326 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 29, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41551
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DIEGO DUQUE-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
(05-CR-886)
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Diego Duque-Hernandez challenges the district court’s
application of a 12-level sentencing enhancement. We vacate the
sentence and remand for resentencing.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Duque-Hernandez pled guilty to a single count of illegal
reentry after deportation. Using the 2004 edition of the
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Sentencing Guidelines, the presentence report (“PSR”) recommended
a 12-level increase to his offense level because his prior
deportation followed a felony drug conviction. See U.S.S.G. §
2L.1.2(a). The district court assessed a Guidelines sentence after
assessing the recommended 12-level increase.
II. DISCUSSION
Duque-Hernandez argues that the district court erred by
applying the 12-level enhancement because his prior Utah conviction
for offering to sell drugs is not a drug trafficking conviction
under the Sentencing Guidelines. See USSG § 2L1.2(b)(1)(B).
Because Duque-Hernandez did not properly preserve his argument
below, we review for plain error.1 See United States v. Garza-
Lopez, 410 F.3d 268, 272 (5th Cir. 2005). Under plain error
review, Duque-Hernandez must show (1) that an error occurred, (2)
that the error was plain, which means “clear” or “obvious,” and (3)
that the error affected his substantial rights. United States v.
Cotton, 535 U.S. 625, 631–32 (2002). “If all three conditions are
1
Based on defense counsel’s statements to the district court
as to the correctness of the PSR and lack of objections, the
government argues for waiver/invited error, barring review. Waiver
is the “intentional relinquishment or abandonment of a known
right.” United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.
2006) (citations omitted) (emphasis added). Under invited error
doctrine, a defendant cannot appeal alleged errors he “invited or
induced.” United States v. Green, 272 F.3d 748, 754 (5th Cir.
2001). We are not persuaded that defense counsel’s statements
operated so as to constitute a waiver, nor an invitation to the
court to make the particular error; accordingly, we review for
plain error.
2
met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if . . . the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 631 (internal quotations and citations
omitted).
Under the categorical approach of United States v. Taylor, 495
U.S. 575, 602 (1990), a court “looks to the elements of the prior
offense, rather than to the facts underlying the conviction, when
classifying a prior offense for sentence enhancement purposes.”
Garza-Lopez, 410 F.3d at 273. The court may also consider
documents such as the charging instrument and the jury
instructions. Id. A court may not, however, rely solely on the
description of the offense contained in the PSR. Id. at 274.
The district court had only the PSR and judgment of conviction
before it. The PSR asserted that the Utah court convicted Duque-
Hernandez of a “felony drug trafficking offense,” but the judgment
does not conclusively establish that the conviction involved
distribution of a controlled substance. The judgment merely
indicates that Duque-Hernandez was convicted of violating the
applicable Utah statute, which included offenses outside the
Guidelines definition of a “drug trafficking offense.” See Utah
Code Ann. § 58-37-8(1).2 Duque-Hernandez claims that he was not,
2
Specifically, the judgment indicates that Duque-Hernandez
“[a]ttempted Distribute/Offer/Arrange to Dist,” which lists in
abbreviated form the possible violations within the Utah statute.
3
in fact, convicted of a qualifying offense, and supplemented the
record to add a “Statement by Defendant in Advance of Guilty Plea”
from the Utah criminal proceeding in which he admits that he was
pleading guilty to “attempt[ing] to offer, consent, agree or
arrange to distribute a controlled substance . . . .” We also
allowed the government to supplement the record with the charging
instrument, which suggests that the defendant was offering to sell
a controlled substance.
Offering to sell a controlled substance lies outside section
2L1.2’s definition of “drug trafficking offense,” because section
2L1.2 “covers only the manufacture, import, export, distribution,
or dispensing of a controlled substance (or possession with the
intent to do any of these things).” Garza-Lopez, 410 F.3d at 274.
Merely offering to do one of the enumerated acts is not sufficient.
Accordingly, the district court erred in finding that Duque-
Hernandez’s prior conviction was for a drug-trafficking offense as
defined by section 2L1.2. This error is clear and obvious under
the plain language of the Guidelines, and so we must ask whether
the error affected Gonzales’s substantial rights. See id. at 275
(finding that court’s reliance on PSR was plain error).
“[W]e must determine ‘whether the defendant can show a
reasonable probability that, but for the district court’s
misapplication of the Guidelines, [he] would have received a lesser
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sentence.’” Id. at 275 (quoting United States v. Villegas, 404 F.3d
355, 364 (5th Cir. 2005)(per curiam)). Without the erroneous 12-
level enhancement, Duque-Hernandez would not have faced more than
an eight-level enhancement. See U.S.S.G. § 2L1.2(b)(1)(C). That
enhancement, coupled with the same acceptance of responsibility
reduction and criminal history category, would have produced a
Guideline range of 18 to 24 months imprisonment. Instead, the
district court sentenced Duque-Hernandez to 30 months imprisonment
and three years of supervised release. Given the imposition of a
sentence greater than that otherwise recommended, the error
affected Duque-Hernandez’s substantial rights and, consequently,
seriously affects the integrity of the judicial proceedings. See
Garza-Lopez, 410 F.3d at 275 (holding that erroneous enhancement
for prior drug-trafficking offense resulting in substantially
different sentence affected fairness of judicial proceedings).
Duque-Hernandez also challenges the constitutionality of
section 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). As Duque-Hernandez concedes, this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), and was only raised here in order to preserve
it for further review.
III. CONCLUSION
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For the foregoing reasons, we VACATE Duque-Hernandez’s
sentence, and REMAND for resentencing.
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